Opinion
Court of Appeals No. A-9085.
June 18, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides and Philip R. Volland, Judges, Trial Court No. 3AN-02-4514 Cr.
David E. George, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Gerald Alvin Mahle Sr. appeals his convictions for fourteen drug-related felonies, charges that arose from Mahle's sales of controlled substances over a one-week period. On appeal, Mahle argues that his indictment should have been dismissed on the ground that it was based on illegally obtained evidence. He also raises various challenges to the superior court's evidentiary and procedural rulings during the trial. In addition, Mahle contends that his sentence was imposed in violation of the right to jury trial announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that, in any event, his composite sentence is excessive.
For the reasons explained here, we reject all of Mahle's contentions and we affirm his convictions and sentence.
The superior court's refusal to accept and rule on Mahle's various pro se motions to suppress evidence and dismiss the indictment
In June 2003, approximately one year after he was indicted, Mahle filed a pro se motion to dismiss the indictment, based on the contention that the State presented unlawfully obtained evidence to the grand jury. In particular, Mahle challenged the State's presentation o f recorded conversations between himself and police agent Evgenia "Gina" Rukovishnikoff — conversations that accompanied Mahle's sales of drugs to Rukovishnikoff, and that were recorded under the authority of a Glass warrant.
State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (holding that the Alaska Constitution requires the police to obtain judicial authorization before they electronically monitor or record a conversation between a suspect and an undercover police agent).
In his motion to dismiss the indictment, Mahle argued that the recording of these conversations was unlawful because the State never established probable cause for the issuance of the Glass warrant. (The superior court had, in fact, already reached the same conclusion — and had suppressed the recordings made pursuant to that warrant.) In addition, Mahle argued (under various theories) that these recordings were made in violation of the federal wiretap statute, 18 U.S.C. § 2518. Based on these contentions, and based on the fact that the grand jury had heard these recordings, Mahle argued that the indictment should be dismissed.
But Mahle was represented by counsel and was therefore not entitled to file his own motions. When the issue of Mahle's motion to dismiss the indictment was first presented to the superior court on June 18, 2003, the court told Mahle that all pleadings would have to come from his court-appointed attorney, and the court directed Mahle to discuss this matter with his attorney to see if the attorney thought that Mahle's claims should be pursued. But Mahle's attorney told the judge, "I can respond to that now."
The defense attorney then informed the superior court that this Court had already held that the federal wiretap statute did not apply to Mahle's situation — i.e., that the federal wiretap statute does not apply when one participant to the conversation (here, the police agent) consents to the electronic monitoring. (The decision to which the defense attorney was referring is Bachlet v. State, 941 P.2d 200, 208 (Alaska App. 1997).) The defense attorney told the superior court that, because of our decision in Bachlet, it would be unethical to pursue Mahle's proposed federal wiretap claims — because they had no colorable legal basis.
After hearing the defense attorney's explanation, the superior court ruled that Mahle was bound by his attorney's decision not to pursue this motion.
When the parties returned to court on August 19, 2003, Mahle's attorney again notified the court that Mahle still wanted him to file a motion to dismiss the grand jury indictment — and the defense attorney again declared that he would not file such a motion because "[he did not] see anything that was improper at the grand jury".
In particular, with respect to Mahle's argument that the Glass warrant had been issued without probable cause, the defense attorney noted that the superior court had, in fact, already invalidated the Glass warrant on that basis. The problem with Mahle's proposed motion to dismiss the indictment (the defense attorney explained) was that, even though the invalidation of the Glass warrant required suppression of the electronic recordings of Mahle's conversations with Rukovishnikoff, "the [police] officer and Gina [Rukovishnikoff] can [still] come in and . . . testify about what happened" based on their own memories and perceptions.
In other words, the superior court's invalidation of the Glass warrant "just [meant that] no one [should have been] playing a tape". It did "not [mean] that Gina can't testify at all, [or that] the charges go away". The defense attorney concluded by telling the superior court that he and Mahle "[still] had some disagreement about [this matter]".
Roughly one week after this August 19th hearing, Mahle (again acting pro se) filed another motion to dismiss the indictment. Although this second motion was worded a little differently from the first one, it presented essentially the same claims: first, that the invalidation of the Glass warrant required suppression, not just of the electronic recordings themselves, but rather of all testimony given by any witness relating to the events to which those recordings pertained; and second, that the electronic recordings were made in violation of the federal wiretap statute.
The superior court took no action on this motion — apparently, for the same reason as before: Mahle was represented by counsel.
About ten weeks later, Mahle's court-appointed counsel withdrew and another attorney was appointed by the Office of Public Advocacy to take his place. During the interval between the withdrawal of the first attorney and the appointment of the second, Mahle took the opportunity to resubmit his pro se motion to dismiss the indictment (specifically, to resubmit the second version of that motion).
On April 2, 2004, the superior court issued an order informing Mahle that he could not file pleadings on his own, and that the court would only accept pleadings filed by Mahle's attorney. The court then returned Mahle's pro se motion to him.
On appeal, Mahle argues that the superior court was obliged to accept the motion when he resubmitted it during the interval between the withdrawal of his first attorney and the naming of his second attorney by the Office of Public Advocacy. Mahle contends that, during this interval, "he was not represented [by counsel]", and thus he was entitled to file his own motions.
In a narrow sense, it is true that Mahle had no attorney during this interval. But he never waived his right to counsel, nor was he ever granted pro se co-counsel status. Therefore, even though the Office of Public Advocacy had not yet had time to identify Mahle's replacement counsel, Mahle was still "represented by counsel" when he re-submitted his pro se motion to dismiss the indictment — in the sense that he was represented by the Office of Public Advocacy. Accordingly, Mahle had no right to file a pro se motion.
On April 21, 2004, Mahle's trial ended with the jury finding him guilty of all the charges submitted to them. Eight days later, on April 29th, Mahle's attorney ( i.e., his second attorney) filed a pleading entitled "Notice of Filing Mr. Mahle's Motion for Judgment of Acquittal, or for a New Trial".
Although this one-page "Notice of Filing" was printed on the attorney's stationery and was signed by the attorney, the accompanying 3-page substantive pleading was not the attorney's work. Rather, the substantive pleading was printed on plain legal stationery ( i.e., legal stationery that had no identifying information regarding a lawyer or law firm), and it was signed "Gerald Mahle, Defendant, Pro se". In this pro se pleading, Mahle argued that he was entitled to a judgement of acquittal, or at least a new trial on all charges, because his previous attorney had failed to file Mahle's proposed motions to dismiss the indictment (the ones described above).
On July 2nd, apparently because the superior court had taken no action on the April 29th motion, Mahle's attorney filed another "Notice of Filing" — this one entitled "Notice of Filing [of] Mr. Mahle's Motion for Reconsideration".
Again, this one-page "Notice of Filing" was printed on the attorney's stationery and was signed by the attorney, but the accompanying 3-page substantive pleading w as printed on plain legal stationery and w as sign ed "Gerald Mahle, Defendant, Pro [p]er". In this pro se pleading, Mahle again argued that he was entitled to a judgement of acquittal, or at least a new trial on all charges, because his previous attorney had failed to file Mahle's proposed motions to dismiss the indictment. Mahle claimed that, if his previous attorney had filed any of these motions, "this case would have been dismissed with prejudice" or "[a] jury or the court would have found the defendant not guilty [of] all charges".
When the parties appeared in court six days later (July 8th) for sentencing, Mahle's attorney mentioned that both of Mahle's motions remained pending and undecided. The prosecutor took the position that she would not respond to Mahle's motions unless ordered to do so by the court. The judge did not object to the prosecutor's position, but rather informed the prosecutor that he would examine the two motions and then issue an appropriate order.
A little over three months later, the court issued its order regarding Mahle's motions for a judgement of acquittal or a new trial. The pertinent portion of this order reads:
Mahle . . . contends that his lawyers should have filed a motion to dismiss the indictment following [this court's] ruling [that the Glass warrant was invalid]. This might be the basis of a claim that Mahle received ineffective assistance of counsel, but [it] is not grounds for a judgment of acquittal.
On appeal, Mahle argues that the superior court was obliged "to rule on the substantive [merits] of [his] Motion for Reconsideration . . . after [this motion] was filed by [Mahle's second attorney]." We disagree.
First, even though Mahle's attorney transmitted the "Motion for Judgment of Acquittal, or for a New Trial" dated April 29th and the "Motion for Reconsideration" dated July 2nd to the superior court, neither motion was "filed" by Mahle's attorney — in the sense that the attorney gave any indication that he endorsed Mahle's arguments and that he was ready to personally litigate these claims. As explained above, Mahle's attorney submitted a "Notice of Filing" (essentially, a cover memo) to accompany each of Mahle's pleadings. But Mahle's attorney never suggested that he personally intended to pursue Mahle's claims, or that he believed that Mahle's claims had arguable merit. Instead, in both instances, the substantive pleadings were signed by Mahle himself — and, in Mahle's signature line, he designated himself as acting " pro se" or " pro [ p] er" ( i.e., in propria persona).
As we have already discussed, Mahle was not entitled to file motions on his own. Thus, the superior court could properly refuse to address the substantive merits of Mahle's claims.
Second, even if Mahle's attorney had personally endorsed Mahle's claims, the superior court could still properly refuse to address the merits of these claims. As the superior court recognized, Mahle's arguments did not present valid grounds for a judgement of acquittal or a new trial. Rather, Mahle's claims in these two pleadings were essentially a restatement of Mahle's earlier arguments that the evidence against him should have been suppressed, and that — as a result — his indictment should have been dismissed. Under Alaska Criminal Rule 12(b) and (e), such claims must be raised before trial or they are forfeited.
Both Mahle's motion of April 29th and his motion of July 2nd were filed after his trial. Thus, even if Mahle's attorney had somehow endorsed Mahle's suppression claims and Mahle's attack on the indictment when the attorney submitted the two accompanying "notices of filing", these claims were already barred by operation of law.
As the superior court recognized (and told Mahle), Mahle remains free to argue — in a petition for post-conviction relief — that his attorney's failure to file these motions before trial constituted ineffective assistance of counsel. But the superior court correctly perceived that it was not obliged to entertain post-trial suppression motions and post-trial attacks on the indictment — whether filed by Mahle himself or by his attorney.
For these reasons, we find no error in the superior court's handling of the various motions discussed in this section.
The superior court's refusal to order total production of the records of the Office of Children's Services pertaining to child-in-need-of-aid proceedings instituted on behalf of the children of government witness Gina Rukovishnikoff
As explained earlier, Evgenia "Gina" Rukovishnikoff worked as an undercover agent for the police, and she testified at Mahle's trial concerning Mahle's sales of controlled substances to her.
During her testimony, Rukovishnikoff admitted that she had been a drug dealer herself, and that she began working for the police in the hope of obtaining a more favorable result in her own criminal case. Rukovishnikoff also testified that, during the period of time at issue in this case, her children were in state custody as a result of child-in-need-of-aid cases that the State had instituted on behalf of the children. Rukovishnikoff stated that she feared she would lose custody of her children if she did not cooperate with the police.
On cross-examination, Rukovishnikoff admitted that her children w ere still in state custody at the time of Mahle's trial, and that one of her reasons for cooperating with the police was her hope that the Office of Children's Services could be convinced to drop the child-in-need-of-aid cases.
Before Rukovishnikoff took the stand, Mahle's attorney asked the superior court to order production of the Office of Children's Services records pertaining to the child-in-need-of-aid cases involving Rukovishnikoff's children. Responding to this request, the superior court procured a copy of the Office of Children's Services' files concerning the four children. These files total approximately 1700 pages. Of these 1700 pages, the superior court selected some 100 pages to disclose (under seal) to Mahle's attorney and to the prosecutor. The remaining 1600 pages were not disclosed.
On appeal, Mahle contends that the superior court's disclosure of these selected 100 pages was not sufficient. However, these 100 pages contain a full discussion of the reasons why the Office of Children's Services was concerned for the welfare of Rukovishnikoff's children, as well as Rukovishnikoff's response to the child-in-need-of-aid proceedings and her efforts to comply with the OCS's treatment proposals.
We conclude that the remaining 1600 pages of paperwork would not have added anything of substance to Mahle's understanding of the child-in-need-of-aid proceedings (to the extent that those proceedings were relevant to Mahle's potential cross-examination of Rukovishnikoff). Accordingly, the superior court's decision to provide only limited disclosure of these files was not an abuse of discretion. The superior court did not abuse its discretion when it limited Mahle's cross-examination of government witness Lisa Thornton
Besides selling drugs to Gina Rukovishnikoff, Mahle also sold drugs to Lisa Thornton. Thornton was not a police agent (at least, not wittingly). Rather, an undercover officer approached Thornton and asked her if she could get some oxycontin for him, and Thornton went to Mahle to procure the drug. Thornton eventually realized that her "customer" was an undercover police officer — and, in fact, during their next transaction, Thornton plotted to steal the buy money. Thornton eventually agreed to testify for the State against Mahle, in exchange for a reduction of the charges against her and a negotiated sentence of 6 years' imprisonment. (The original charges filed against Thornton carried a mandatory minimum sentence of 15 years.)
During her testimony, Thornton admitted all of the foregoing. She also admitted that she herself was a drug addict and was using drugs during this time. She conceded that she had been charged with prostitution, and that this charge was dismissed by the authorities. Thornton further conceded that she had previously been convicted of crimes of dishonesty, including theft, shoplifting, and giving false information to the police. And she admitted that, at the time of her testimony, she was in the custody of the Department of Corrections.
In addition to the impeachment just described, Mahle's attorney wanted to cross-examine Thornton about one other matter: a domestic dispute that Thornton had with another woman, Sylvia English, in early 2002, at about the same time as Mahle's drug sales to Thornton.
Apparently, both Thornton and English applied for restraining orders against each other. Mahle's attorney wanted to cross-examine Thornton concerning allegations (1) that Thornton had threatened to burn English's mail unless English dropped her restraining order against Thornton, and (2) that Thornton had scratched her own face so that she could falsely claim that English had assaulted her. Mahle's attorney asserted that he should be allow ed to cross-examine Thornton about these events because (1) Thornton faced potential criminal charges based on these events, and (2) there was a reasonable possibility that one of Thornton's motivations to negotiate a plea agreement with the State was to make sure that these charges were not filed.
During voir dire outside the presence of the jury, Mahle's attorney confronted Thornton with these allegations of wrongdoing, and Thornton flatly denied them. In particular, with regard to the incident involving scratches on her face, Thornton maintained that English suffered from severe mental problems and that English had, in fact, assaulted her. When Mahle's attorney asked Thornton if she feared that she herself might be charged with a crime as a result of this incident, Thornton answered, "Absolutely not. I was assaulted. She [ i.e., English] was already on probation at the time for d[omestic] v[iolence]."
At the end of this voir dire, the superior court concluded that Mahle's attorney should not be allowed to cross-examine Thornton about her dispute with English. The court concluded that, even though these events were fairly contemporaneous with the drug sales at issue in Mahle's case, Thornton's dispute with English was "not probative of anything [pertinent to] this case". The court also found that there had been no reasonable possibility that Thornton would be prosecuted for a crime in connection with these events, and there was no evidence indicating that Thornton had been concerned about such a possibility when she negotiated her plea agreement with the State.
On appeal, Mahle asserts that the superior court's ruling was an improper restriction on his right to cross-examine Thornton. But the record supports the superior court's conclusion that this proposed cross-examination had little or no relevance to evaluating Thornton's credibility or her motivations for negotiating a plea agreement with the State. Moreover, as we explained above, Mahle's attorney possessed — and made active use of — much more direct means to challenge Thornton's credibility and to reveal her motivations for testifying against Mahle. Thus, even assuming that the proposed cross-examination had some small relevance, the superior court could nevertheless properly preclude the proposed cross-examination under Alaska Evidence Rule 403.
The superior court did not abuse its discretion when it declined to conduct further investigation into Lisa Thornton's comment to the jury as she was leaving the witness stand
As Lisa Thornton was leaving the witness stand, she either mouthed or softly uttered the words "Thank you" to the jury. The trial judge suggested that the jurors be admonished to ignore Thornton's comment, but he also indicated that there might be a need to voir dire the jurors individually "to [find out] how many [of them] actually saw it [or] heard it".
Mahle's first reaction to this occurrence was to request a mistrial. The judge decided to conduct individual voir dire of the jurors and to hold Mahle's motion for mistrial under advisement until the results of this voir dire were known.
The voir dire of the jurors revealed that five of them — Jurors Number 7, 9, 11, 12, and 14 — heard Thornton say "thank you". (A sixth juror, Juror Number 8, perceived that Thornton said something, or appeared to be talking to somebody, but the juror did not know what Thornton had said.) Of the five jurors who heard Thornton say "thank you", all of them declared (1) that they had not discussed this occurrence with any other juror, and (2) that this occurrence would not affect their view of Thornton's testimony or their consideration of Mahle's case.
Following this voir dire, Mahle's attorney withdrew his motion for a mistrial. The defense attorney did, however, suggest that it would be proper for him to comment on Thornton's behavior when he delivered his summation to the jury.
The trial judge rejected this suggestion because, as the voir dire showed, more than half of the jurors had no idea that Thornton had said anything when she left the stand. Thus, the defense attorney's proposed argument would in fact inject further extraneous information into the trial.
The judge also discussed the possibility of recalling Thornton to the stand so that she could be cross-examined about this incident. However, the judge ultimately rejected this proposal as well. He concluded that any possible benefit of this inquiry was outweighed by the risk that it would simply confuse matters further for the jury (especially those jurors who were unaware that Thornton had said anything). The judge further noted that, of the five jurors who had heard Thornton's words, all of them unambiguously stated that this occurrence would not affect their view of Thornton's credibility or their consideration of the case.
The judge declared that he was willing to give a cautionary instruction to the jury ( i.e., an instruction directing the jurors to ignore Thornton's comment) if Mahle asked for one. Mahle's attorney said that he would welcome a cautionary instruction, but he continued to object to the court's decisions not to allow him to argue this point during summation and not to allow cross-examination of Thornton on this matter.
On appeal, Mahle renews his arguments that he should have been able to mention this incident during his summation to the jury, and that the trial judge should have recalled Thornton to the stand so that she could be cross-examined about her departing comment to the jurors.
Mahle relies on the Utah Supreme Court's decision in State v. Pike, 712 P.2d 277 (Utah 1985). In Pike, the Utah court ordered a new trial in a criminal case because an important police witness engaged in a social conversation with several jurors during the trial. Id. at 280-81. Specifically, the officer explained to three jurors that he was limping because of an injury he sustained while cleaning his patio. Id. at 280.
The Utah court declared that witness-juror contacts are presumptively prejudicial to the fairness of a trial, and that the State had failed to rebut this presumption of prejudice. Id. at 280-81. The court concluded that "the [officer's] conversation [with the jurors] amounted to more than a brief, incidental contact", and that it "no doubt had the effect of breeding a sense of familiarity that could clearly affect the jurors['] judgment as to [the] credibility [of the officer's testimony]" — even if the jurors denied being influenced by the encounter. Id. at 281.
For other appellate decisions applying this rule — i.e., the presumption that any contacts between a witness and jurors other than brief, incidental ones will prejudice the fairness of a trial — see Commonwealth v. Mosley, 637 A.2d 246, 248 (Pa. 1993) (granting a new trial because, after a juror told a police witness where he was from, the police witness commented on the high quality of the juror's hometown police department, evoking a response from the juror that he was a friend of the chief of police in that locality); and State v. Lang, 862 P.2d 235, 241-42 (Ariz.App. 1993) (ordering a new trial where a police witness fraternized with jurors by telling them stories, discussing his job as a police officer, and explaining delays in the trial).
We find Pike distinguishable from Mahle's case in two important ways. First, the occurrence in Mahle's case took place in open court, in front of several witnesses, including the trial judge. Indeed, the judge was the first person to bring it up. Because of this, the facts of the occurrence — including Thornton's precise words, and the jurors' visible reaction to Thornton's remark — were not in dispute.
Second, in Mahle's case there was no conversation — in the sense of interaction — between Thornton and the jurors. Thornton's "thank you" was an isolated, unsolicited comment of little substance, and this comment drew no response or other act of engagement from any member of the jury.
We agree with the trial judge that, under these circumstances, Thornton's "thank you" can be analogized to the inappropriate comments that witnesses occasionally volunteer from the stand. In such situations, the problem is routinely handled by giving the jury a cautionary instruction.
For example, in Jackson v. State, Alaska App. Memorandum Opinion No. 3080 at 7-8 (March 1, 1995), 1995 WL 17220369 at *3-4, a witness made a spontaneous and unsolicited statement that directly contradicted her previous testimony — and then, as the trial judge and the attorneys were leaving the courtroom to confer in the anteroom about this situation, the witness continued to volunteer more comments in an attempt to convince the court and the jurors of the veracity of her unsolicited statement. The trial judge resolved this problem by instructing the jurors to disregard the witness's behavior and statements. Jackson, Memorandum Opinion No. 3080 at p. 8, 1995 WL 17220369 at *4. And on appeal, this Court upheld the trial judge's resolution of this matter. Id.
See also Flake v. State, Alaska App. Memorandum Opinion No. 2928 at 5-6 (June 8, 1994), 1994 WL 16196258 at *6, where this Court held that a cautionary instruction was sufficient to remedy a bailiff's improper comment to the jury (informing the jurors that there would have to be another trial if they were unable to reach a verdict).
We similarly conclude that the problem in Mahle's case could be adequately cured by a cautionary instruction. We accordingly uphold the trial judge's decisions not to allow Mahle's attorney to recall Thornton to the stand for cross-examination concerning this matter and not to allow Mahle's attorney to argue this matter during his summation to the jury. The claim that Mahle was sentenced in violation of his right to jury trial under Blakely v. Washington
Mahle was convicted of fourteen felonies under AS 11.71, the chapter of Alaska's criminal code related to controlled substances. Eight of these convictions were for second-degree controlled substances misconduct, a class A felony with a maximum penalty of 20 years' imprisonment. Because Mahle was a third felony offender, he faced a presumptive term of 15 years' imprisonment (under the pre-2005 version of Alaska's presumptive sentencing law) for each of these eight class A felonies.
A S 11.71.020(d) (second-degree controlled substances misconduct is a class A felony) and former AS 12.55.125(c) (pre-March 2005 version) (specifying a 20-year maximum sentence for class A felonies).
See former AS 12.55.125(c)(4) (pre-March 2005 version) (specifying a presumptive term of 15 years' imprisonment for third felony offenders convicted of a class A felony).
The superior court sentenced Mahle to the 15-year presumptive term for each of his eight convictions for second-degree controlled substances misconduct, but the court ordered 5 years of the sentence on Count III and 5 years of the sentence on Count V to run consecutively to the other sentences — resulting in a composite term of 25 years' imprisonment.
On appeal, Mahle argues that, by imposing a composite sentence greater than 15 years to serve ( i.e., greater than the 15-year presumptive term for any one of these eight offenses), the superior court violated his Sixth Amendment right to jury trial as announced in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Mahle contends that, by imposing portions of these sentences consecutively, the superior court "[i]n effect . . . found aggravating factors without [submitting these] findings [to] a jury".
But as the State points out in its brief, this Court held in Edmonds v. State, 118 P.3d 17, 21 (Alaska App. 2005), that the Blakely right to jury trial does not apply to a sentencing judge's decision whether to impose consecutive (or partially consecutive) sentences that, in combination, exceed the presumptive term for the defendant's most serious offense. And in Vandergriff v. State, 125 P.3d 360, 363 (Alaska App. 2005), this Court held that Blakely does not apply to a sentencing judge's decision under the Neal-Mutschler rule — i.e., the judge's decision as to whether, because of the need to protect the public, the defendant should receive consecutive (or partially consecutive) sentences that, in combination, exceed the maximum term of imprisonment for the defendant's single most serious offense.
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Our decisions in Edmonds and Vandergriff control this issue — and, accordingly, the superior court did not violate Blakely when the court imposed partially consecutive sentences totaling 25 years' imprisonment.
We add one more comment. Even though the State's brief cited and explicitly relied on our decisions in Edmonds and Vandergriff as the answer to Mahle's Blakely argument, Mahle continued to assert in his reply brief that his Blakely right to jury trial was violated. In this reply brief, Mahle did not acknowledge that Edmonds and Vandergriff are controlling precedent on this issue. Indeed, Mahle's reply brief does not even mention these two cases by name. Instead, Mahle's argument consists of the following paragraph:
Despite the state's arguments to the contrary, [the sentencing judge] effectively found aggravating circumstances in this case without these circumstances being submitted to a jury, [a sentencing procedure] prohibited by Blakely v. Washington, 542 U.S. 296 (2004). Blakely and Apprendi v. New Jersey [citation omitted] [hold] that a judge may not exceed the statutory maximum [term of imprisonment] based on facts not found by a jury. [Mahle's sentencing judge] exceeded the statutory maximum . . . because he exceeded the presumptive [term for] the most serious crime. There were no jury findings to support [a sentence] exceeding the presumptive [term].
We acknowledge that an attorney is obliged to zealously argue a client's position even when there may seem to be little hope that it will prevail. But this obligation of zealous representation is governed by an attorney's ethical duty to refrain from pursuing frivolous arguments — that is, arguments that have no reasonable basis in law or fact.
Alaska Professional Conduct Rule 3.1 declares, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous[.]" In addition, Alaska Civil Rule 11 — which, by virtue of Alaska Criminal Rule 50(b), also governs criminal litigation — declares that an attorney's signature on a pleading "constitutes a certificate by the signer that [he or she] has read the pleading, [and] that[,] to the best of the signer's knowledge, information, and belief formed after reasonable inquiry[,] it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.]"
Tyler v. State, 47 P.3d 1095, 1100 (Alaska App. 2001).
An attorney does not violate Professional Conduct Rule 3.1 or Civil Rule 11 by making a good-faith argument for the modification or reversal of precedent. But Mahle's argument in this case does not qualify as a good-faith argument for the reversal of our decisions in Edmonds and Vandergriff. As pointed out above, Mahle's attorney does not even mention these two decisions, except perhaps in the opening circumlocution, "[d]espite the state's arguments to the contrary".
We caution Mahle's attorney, and lawyers in general, that the presentation of frivolous arguments violates both Professional Conduct Rule 3.1 and Civil Rule 11, and that it is grounds for the imposition of sanctions under Appellate Rule 510(c).
The claim that Mahle's composite sentence of 25 years' imprisonment is excessive
As explained above, Mahle received a composite sentence of 25 years to serve for his fourteen drug felonies. Mahle argues that this composite sentence is excessive, and that he should not have received more than the 15-year presumptive term that applied to his eight most serious offenses.
Mahle was sixty-four years old at the time of his sentencing. His criminal history spanned the preceding forty years, encompassing two felonies and twelve misdemeanors. The sentencing judge remarked that, rather than learning from his mistakes, Mahle had persisted in criminal behavior for decades and had "[assumed] the persona of a grandfather[ly] drug dealer".
The judge noted that the testimony at Mahle's trial suggested that he was a frequent retail drug dealer — that he not only sold drugs to Evgenia Rukovishnikoff and Lisa Thornton, but that he also provided "a smorgasbord" of drugs "to a number of different people in this community".
Given the persistence of Mahle's criminal behavior over the years, the sentencing judge found that Mahle's previous jail sentences and periods of probation "[had] had little or no effect on deterring Mr. Mahle", and that Mahle "had little respect for the law". Because of this, the sentencing judge concluded that the sentencing goals of isolation and deterrence under AS 12.55.005 weighed in favor of a significant sentence.
When the sentencing judge announced the composite sentence of 25 years' imprisonment, the judge acknowledged that this was likely to be a life sentence for someone sixty-four years old — even if one assumed that Mahle would receive full good time credit under AS 33.20 and would end up serving only two-thirds of the 25 years. Nevertheless, the sentencing judge concluded that this composite sentence was both justified and needed because Mahle "continues to present a risk to the community despite prior convictions and prior opportunities to respond to probationary and parole supervision."
On appeal, Mahle argues that the sentencing judge should have considered the progressive enfeeblement that Mahle will suffer as he enters his seventies and eighties. According to Mahle, these physical changes will reduce the risk of his recidivism — thus eliminating the need for such a lengthy sentence. But Mahle was not convicted of crimes of violence or crimes that otherwise require the physical strength and mental acuity characteristic of youth. Nothing in the record suggests that Mahle's motivation or capacity to engage in illicit drug sales will diminish as he grows older.
We are to uphold a criminal sentence unless we are convinced that it is clearly mistaken. The record in this case supports the sentencing judge's analysis, and we conclude that Mahle's sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
Conclusion
The judgement of the superior court is AFFIRMED.